1. This appeal under Section 100 of the Code of Civil Procedure is at the instance of original defendants against whom the respondents herein had filed Regular Civil Suit No. 134 of 2005 for declaration and permanent injunction.
2. It is the case of the respondents in the suit that they are owners and have been in possession of suit land, that the suit land was originally belonged to one Jhumla Jithara Damor who was brother of father of the respondents, that Jhumla Jithara Damor expired on 18.07.1940 and he was survived by his widow Ramtuben Jhumla, that after the death of Jhumla Jithara, name of his widow Ramtu Jhumla came to be entered in the revenue record as (nondh), that after death of Ramtu Jhumla, name of the respondents were entered in the revenue record by entry No. 727 and since then the respondents have been cultivating the suit land, paying the revenue and residing in the huts which are on the suit land, that with the name of Ramtu Jhumla, name of the father of the appellants was wrongly entered in the revenue record and the Talati as well as the Mamlatdar in collusion with the appellants got entry No. 846 made on 20.12.1996 for which no notice was issued to the respondents and therefore, R.T.S proceedings were initiated, that on the basis of aforesaid entries, since the respondents apprehended that their possession would be forcibly taken by the pressure from the police and with the help of antisocial elements, the suit was required to be filed for the purpose of protecting their rights in the suit land.
3. The suit was resisted by the appellants- defendants by filing written statement at exhipit 23 and it was stated that the appellants have been in possession of the suit land and cultivating the suit land and taking crop therefrom right from the time of their forefathers, that the father of the appellants, named Jehingbhai, was the heir of Ramtuben who survived after death of Jhumla Jithra and since the father of the appellants was residing with his mother Ramtuben as well as with Jhumla Jithara, his name was also entered in the revenue record along with the name of Ramtuben after the death of Jhumla Jithara, that proper procedure under the provisions of Section 135 D of Bombay Land Revenue Code was followed before entering the name of father of the appellants as also Ramtu Jhumla and there was no illegality in making entry in the name of father of the appellants, that the suit was filed with an intention to snatch away the ancestral property of the appellants though the respondents had no right or title to the suit property, that after the death of Jehingbhai, who was father of appellants, the appellants were entitled to inherit the property and, therefore, their names were rightly entered in the revenue record and they, as owners, have been in possession of the property since long and the respondents have no right to file suit for the declaration or for any kind of the injunction because they are not the heirs of Ramtuben or Jhumla Jithara, that the respondents have also failed before all the authorities in the R.T.S. Proceedings and they now cannot claim any right in the suit property.
4. Learned Trial Judge on the basis of the evidence available on the record came to the conclusion that the respondents are heirs of brother of Jhumla Jithara and after the death of Jhumla Jithara and Ramtuben, since there was no issue of deceased Jhumlabhai, the respondents would be entitled to inherit the property as heirs of Jhumlabhai. Learned Judge also came to the conclusion that the father of the appellants was not the son of deceased Jhumlabhai but he was son of Nasang Mohania, with whom the mother of the father of the appellants had previously married and after the death of her husband, Ramtuben had entered into second marriage with deceased Jhumlabhai and started residing with him keeping the father of the appellants with her. Learned Judge has also recorded that the appellants and the respondents both belong to different caste and, therefore, it cannot be said that the appellants were heirs of deceased Jhumlabhai. Learned Judge, accordingly, came to the conclusion that the respondents became owners and in possession of the suit property by virtue of inheritance and therefore, the appellants have got no right to interfere with peaceful possession and enjoyment of the suit land. Accordingly, the suit of the respondents was partly allowed with a declaration that the appellants have got no right to create obstruction or disturbance in peaceful possession and enjoyment of the suit property by the respondents and also issued permanent injunction restraining the appellants from causing any obstruction or disturbance in the possession of the suit land and from preventing the respondents from cultivating the land and taking crops therefrom and also restrained the appellants from snatching or taking away the possession of the suit land.
5. The appellants challenged the above said judgment and decree passed by learned Trial Judge in Civil Regular Appeal No. 7 of 2007 before the Principle District Judge at Dahod. Learned Appellate Judge on independent appreciation of the evidence came to the conclusion that the respondents were the legal representatives of deceased Jhumlabhai and they are in actual possession of the suit land. Learned Appellate Judge also recorded the finding that deceased Jhumlabhai and his wife Ramtuben had no children and the father of the respondents named Savlabhai, was real brother of deceased Jhumlabhai and, therefore, the respondents would inherit the property of deceased Jhumlabhai as heirs after death of Ramtuben. Learned Appellate Judge has also considered the affidavit filed by the appellant No. 1 at exhibit 60 wherein it was clearly stated that Ramtuben had performed previous marriage and from said marriage, the father of the appellants, named Jehingbhai, was born, that deceased Jhumlabhai and shavlabhai were two brothers, and the respondents are legal heirs of Savlabhai, the brother of the deceased Jhumlabhai. The learned Appellate Judge has observed that since Jehinghbhai was not son of deceased Jhumlabhai but was the son born out of the previous marriage of Ramtuben, Jehingbhai could be not said to have any blood relation with deceased Jhumlabhai and therefore, he could not have inherited the property of deceased Jhumlabhai. On the basis of above findings
6. I have heard learned advocate for the appellants Mr. Kharadi. Mr. Kharadi has submitted that both the Courts below have just considered the blood relation of the respondents with deceased Jhumlabhai and taken the respondents to be the heirs of brother of deceased Jhumlabhai and on that basis they are held to be entitled to the suit land. He submitted that the above considerations were not proper and sufficient inasmuch as both the Courts below have discarded the entries in the revenue record standing in the name of father of the appellants for many years and also discarded the fact of continuous possession of the appellants after the death of their father who had inherited the suit property from his mother Ramtuben who was wife of deceased Jhumlabhai. Mr. Kharadi submitted that both the Courts below have given much importance to the fact that both the parties belonged to different casts. He pointed out that though both the parties belonging to different caste but the important aspects of the matter was to the effect that the father of the appellants had all throughout resided with deceased Jhumlabhai and his mother and had been in possession with Jhumlabhai and after the death of deceased Jhumlabhai when the name of the mother of the father of the appellants was entered in to the revenue record, the name of the father of the appellants also simultaneously recorded and since Ramtuben inherited the property from her husband and since father of the appellants was the son of Ramtuben for all purposes the father of the appellants was heir of deceased Jhumlabhai and Ramtuben and could be said to have inherited the suit land as heir of deceased Jhumlabhai. He thus urged that both the Courts below have committed serious error in holding that the respondents inherited the suit land as heirs of deceased Jhumlabhai and the appellants have no right or title to the suit property.
7. Mr. Kharadi further submitted that even on admitted evidence the substantial question of law would still arise for the consideration of this Court to the effect that whether Courts below could have passed judgment in favour of the respondents though the entry No. 846 was already recorded in the revenue record in the name of the appellants showing personal cultivation of the appellants and as to whether the Courts below could have conferred any title in favour of the respondents though the revenue record and pedigree did not support the case of the respondents.
8. On the above said two questions Mr. Kharadi submitted that the entry which was entered in the revenue record could not have been just discarded because such entry was having presumptive value of showing and establishing the cultivation and possession of the appellants. Even the pedigree would also establish the relation of the father of the appellants with original owner deceased Jhumlabhai as the father of the appellants had virtually resided as son of Jhumlabhai with is mother. He, therefore, submitted that even if, the father of the appellants was not direct descendant of deceased Jhumlabhai, still the Courts below could not have ignored very important and relevant fact about the second marriage of the mother of father of the appellants with deceased Jhumlabhai and also relevant and important fact that father of the appellants having resided all through out with his mother with deceased Jhumlabhai.
9. Learned advocate Mr. Kharid, thus urged to entertain Second Appeal on the basis of the above said substantial question law raised by him.
10. Having heard learned advocates for the parties and having perused the judgment and decree passed by both the Courts below, it appears that there is no dispute about the fact that deceased Jhumlabhai had the suit property in his own name and he had no issue. Deceased Jhumlabhai had entered into second marriage with Ramtuben mother of the father of the appellants and it appears that Ramtuben had taken with her father of the appellants to reside with deceased Jhumlabhai, after entering into second marriage with deceased Jhumlabhai. There is no dispute about the fact that the father of the appellants deceased Jehingbhai was of 'Mohaniya' caste whereas respondents were of 'Damor' Caste. That two castes were different and the appellants as well as the respondents had come from different families. The question which was required to be decided was whether who could be said to be heirs and legal representatives of deceased Jhumlabhai, who was admittedly of 'Damor' caste.
11. Before the Courts below over and above the revenue record showing the entry in the name of the parties, there was also oral evidence available of appellant No. 1-Laljibhai Jehingbhai Mohaniya himself at exhibit 60. On the basis of his evidence, the Courts below have recorded the findings to the effect that the appellants themselves admitted that deceased Jhumlabhai had no children out of the bedlock with Ramtuben and father of the respondents named Savlabhai was brother of the deceased jhumlabhai. As against this, it was found that the father of the appellants had just accompanied or could be said to have been taken by his mother with her to the house of deceased Jhumlabhai after her second marriage with deceased Jhumlabhai. Except the above event of taking the father of the appellants by his mother with her to the house of deceased Jhumlabhai, and except the fact that after the death of Jhumlabhai, name of Ramtuben was entered in the revenue record with the father of the appellants, there is no other evidence to establish that the appellants were heirs of deceased Jhumlabhai or there is no other evidence disproving to the fact that the respondents were not heirs of deceased Jhumlabhai the Courts below on the basis of the appreciation of the evidence have categorically recorded that the respondents being heirs of brother of deceased Jhumlabhai and deceased Jhumlabhai died without any issue, after the death of Ramtuben, the respondents could said to be only heirs left of deceased Jhumlabhai.
12. The above findings of fact on the basis of the evidence were sufficient to decide the title to the property. The right, title or interest in the suit property in the presence of the above stated admitted evidence, could not have been decided on the basis of the revenue entries which are made only for the fiscal purposes. When congent evidence was available on record, on the basis of which the Courts below have found that the respondents could be the only heir of deceased Jhumlabhai, no other aspects were required to be considered as suggested by learned advocate for the appellants. Therefore, in my view, all arguments which are canvassed by the learned advocate for the appellants are of the questions of fact and questions suggested by learned advocate could in no circumstances in the facts of the case and admitted evidence, be taken as substantial questions of law. No substantial question of law has arisen in this Appeal and since both the Courts below have recorded the findings of fact as regards the question of title to the suit property, I find that present appeal is devoid of any merit. The same is, therefore, dismissed.
13. In view of the order passed in the main Second Appeal, no order is required to be passed in the Civil Application. Therefore, the application stands disposed of accordingly.
Braj [C.L. Soni, J.]